Challenging Religious Privilege

High court judgement affirms that the law is secular

In an extraordinary judgment — which will have long-term implications — a Court of Appeal Judge has told Christian campaigners that they are not entitled to special treatment under the law and that their attempts to obtain such privilege is “divisive”. Some Christians are already claiming that the judgement changes the constitution of the UK.

Lord Justice Laws also told Lord Carey that his calls for a special panel that was sympathetic to Christianity to consider cases brought by Christians was “deeply inimical to the public interest”.

The judgement appears to draw a line under attempts by Christian activists to obtain special privileges and treatment in employment and in court hearings.

The case revolved around a Bristol marriage guidance counsellor’s bid to challenge in the courts his sacking for refusing to give sex therapy to homosexuals has been turned down by the Court of Appeal.

In his forthright dismissal of the application to appeal — which amounts to a strong defence of a secular legal system — Lord Justice Laws said legislation for the protection of views held purely on religious grounds cannot be justified. He said it was an irrational idea, "but it is also divisive, capricious and arbitrary."

In an intervention in the application to appeal hearing, the former Archbishop of Canterbury Lord Carey had supported Mr McFarlane’s bid, demanding the formation for a specially-constituted panel of judges with a "proven sensitivity and understanding of religious issues" to hear the case. His idea has been ridiculed and criticised by legal experts as dangerous and unworkable.

Lord Carey said recent decisions involving Christians by the courts had used "dangerous" reasoning and this could lead to civil unrest. This, too, was dismissed by the National Secular Society as a ridiculous overstatement that indicates that Lord Carey is losing touch with reality.

Lord Justice Laws said Lord Carey's views were "misplaced" and judges had never likened Christians to bigots, or sought to equate condemnation by some Christians of homosexuality with homophobia. He said it was possible that Lord Carey's "mistaken suggestions" arose from a misunderstanding of the law on discrimination. He said that under the Employment Equality (Religion or Belief) Regulations 2003, the law forbade discriminatory conduct, not by reference to motives but by reference to outcome.

“Accordingly the proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur. But it is the premise of Lord Carey’s position.”

Justice Law’s ruling continued: "We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion — any belief system — cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens, and our constitution would be on the way to a theocracy, which is of necessity autocratic.”

Mr McFarlane, 48, wanted permission to appeal against an Employment Appeal Tribunal ruling which supported his sacking by Relate Avon in 2008. The father of two, who had worked for the national counselling service since 2003, had alleged unfair dismissal on the grounds of religious discrimination.

Terry Sanderson, president of the National Secular Society, said: “The fundamentalists who keep bringing these cases had clearly hoped that the courts would write their beliefs into law. They must be sorely disappointed by now – as well as considerably out of pocket. Justice Law’s judgement is an extraordinary rebuke to those who would try to introduce a particular religious view into the decisions of courts. Lord Carey must be feeling very foolish as his proposals were described by the judge as “deeply inimical to the public interest”. Maybe now he will think more carefully before he speaks. We sincerely hope that this will put an end to the procession of trumped up claims of discrimination by Christian activists which are time-wasting and expensive for the public purse.”